Delhi High Court
Urmil And Others vs Savitri Devi on 3 December, 2014
Author: G.P. Mittal
$~16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Pronounced on 3rd December, 2014
+ CS(OS) 3054/2012
URMIL AND OTHERS ..... Plaintiffs
Through Mr. Rajat Aneja, Advocate &
Ms. Rashmi Verma, Advocate
versus
SAVITRI DEVI ..... Defendant
Through Mr. Ashok Gurnani, Advocate
%
CORAM:
HON'BLE MR. JUSTICE G.P. MITTAL
G.P. Mittal, J. (Oral)
CS(OS) 3054/2012 & I.A.18517/2012(O.XXXIX Rule 1 & 2 CPC)
1. This suit for partition has been filed by the Plaintiffs against the
Defendant with the averments that Late Shri Tek Chand was the
owner of property bearing no.C-2, Shivaji Park, West Punjabi Bagh,
New Delhi measuring 438 sq. yds. The property was purchased by the
earlier said Late Shri Tek Chand from its previous owner for valuable
consideration on the basis of two sale deeds dated 19.07.1962 and
20.07.1962 duly registered in the office of the Sub-Registrar. It is
averred that said Late Shri Tek Chand during his life time executed a
Will dated 02.04.1986 and on the basis of the said Will, the three
Plaintiffs and the sole Defendant who are the four daughters-in-law of
Late Shri Tek Chand became owners of the property in equal shares.
Thus, it is the case of the Plaintiffs that each of the Plaintiff is entitled
to 1/4th share in the property. Similarly, Defendant is also entitled to
1/4th share and the property may be partitioned by metes and bounds.
2. In the written statement, the Defendant has not disputed that Late Shri
Tek Chand was the absolute owner of the earlier said property or that
he had executed a Will dated 02.04.1986 bequeathing the said
property in equal shares to the three Plaintiffs and the Defendant. In
para 5 of the written statement, the Defendant averred as under:
"5. That the contents of para 5 of the plaint do not
require any comments, however, it is correct to suggest that
the parties are in possession of respective portions of the
property in as much as no partition of any kind whatsoever
including by metes and bounds of the property in question
has taken place. At present the property is in possession of
the following persons as under:
i) Ground floor of the same was and is in possession of
Sh. Babu Ram including that of Ms. Urmila Plaintiff no.1
and Smt. Savitri Devi.
In addition thereto, Sh. Babu Ram is in possession of
one Shop on the ground floor shown in red colour in the site
plan.
However, it is relevant to mention here that Sh. Babu
Ram has constructed one unauthorised room on the ground
floor of the property which is shown in red colour in the site
plan filed along with present written statement and as a
result thereof, it is necessary that the unauthorised
construction is to be removed before a partition of the
property can be effected, however, it is without prejudice to
other plea raised by the Defendant that the suit for partition
is not maintainable because it does not cover all the
properties belonging to the family which are still to be
partition such as the assets belonging to M/s Tek Chand &
Sons and other assets acquired out of the funds and assets of
the firm.
ii) First floor was and is in possession of Sh. Ram Niwas
including Ms Santosh-Plaintiff no.2.
iii) One servant quarter on the first floor was and is in
possession of Smt. Savitri Devi.
iv) Second Floor is and was in possession of Sh. Jai
Bhagwan including that of Ms Sunita-Plaintiff no.3."
3. Today, the suit was listed for framing of issues. The learned counsel
for the Plaintiffs pointed out that no issue arises on the basis of
pleadings of the parties and a preliminary decree for partition is liable
to be passed. The prayer is opposed by the learned counsel for the
Defendant. The learned counsel for the Defendant while referring to
the preliminary objections in the written statement has submitted that
there were other properties of Late Shri Tek Chand in the shape of his
share in a partnership firm in respect of which a Civil Suit
CS(OS).89/2013 has been filed by Savitri Devi against the other
partners of the partnership firm. It is urged that the Plaintiffs herein
have placed an obstacle in partition of the partnership firm's property
which was earlier bequeathed by Late Late Shri Tek Chand in favour
of his four sons making their share in the partnership firm equal i.e.
25% to each of the four sons, although three sons of Late Shri Tek
Chand were also partners in the partnership firm.
4. The learned counsel for the Defendant has referred to the judgment of
the Calcutta High Court in Rajendra Kumar Bose v. Brojendra Kumar
Bose, 1923 (77) Indian Cases (Calcutta High Court) to urge that all
the property of joint family should be included in the suit to claim
partition. The judgment cited is not applicable to the facts of the
present case as the property, subject matter of the suit is not a joint
family property at all. Learned counsel for the Defendant referring to
Himani Alloys Limited v. Tata Steel Limited, (2011) 15 SCC 273 has
further submitted that judgment on admission is always in the
discretion of the Court and since the Plaintiffs are not acting equitably,
they are not entitled to the judgment.
5. I have considered the ratio of this judgment. The same also does not
apply to the facts of the instant case. In fact, today the case was listed
only for settlement of issues. A perusal of the Will dated 02.04.1986
which is admitted by the Defendant clearly shows that property
bearing no.C-2, Shivaji Park, West Punjabi Bagh, New Delhi was
bequeathed in favour of four daughters-in-law i.e. the partition
claimed in the instant suit. Of course, in para 2 of the Will, Late Shri
Tek Chand also dealt with his share in the partnership firm M/s Tek
Chand & Sons, 38 Rama Road, Shivaji Marg Industrial Area, New
Delhi. But admittedly, the Plaintiffs and the Defendant were neither
the partners in the said partnership firm nor any of them has been
given any interest in the said partnership firm. The testator has
separately dealt with those properties in paras 1 and 2 of the Will,
English translation of which is extracted hereunder:
"01. I had a house at No.C-2, Shivaji Park, New Delhi-26.
I have built this house from my own earning. Nobody else
has legal hold over this house. I believe this house, after my
death, will get partitioned equally between the wives of my
four sons, i.e. Smt. Savitri Devi w/o Sh Ram Phal; Smt.
Santosh w/o Sh. Ram Niwas; Smt. Urmila w/o Sh Babu Ram;
and Smt. Sunita w/o Sh Jai Bhagwan.
02. I am also partner with M/s Tek Chand & Sons, 38,
Rama Road, Shivaji Marg Industrial Area, New Delhi-
110015. I Have had 35 per stake in the aforesaid firm. My
sons, Sh Ram Phal, Sh Ram Niwas and Sh Babu Ram have
also had had stakes in the aforesaid firm, who have had 25
per cent, 20 per cent and 20 per cent, respectively. I expect
my staked share shall get divided according to this
proportion, after my demise. Sh Ram Niwas will have 5 per
cent; Sh Babu Ram will have 5 per cent and Sh Jai Bhagwan
will have 25 per cent. In this manner, my four sons will get
equally responsible in holding stakes with the aforesaid firm
M/s Tek Chand & Sons. Aside, the capital I have invested in
the firm should get quadrupled so that one share should be
apportioned between Rajesh and Sh Rajender, sons of Sh
Ram Phal, and the remaining other three shares should go
to Sh Ram Niwas, Sh Babu Ram and Sh Jai Bhagwan."
6. Thus, it is evident that no issue arises on the basis of the averments
made in the written statement. The Plaintiffs are therefore, entitled to
a preliminary decree of partition.
7. I hereby pass a preliminary decree of partition in respect of property
bearing no.C-2, Shivaji Park, West Punjabi Bagh, New Delhi holding
that the three Plaintiffs and the Defendant are entitled to equal share
i.e. 25% each in respect of the property bearing no.C-2, Shivaji Park,
West Punjabi Bagh, New Delhi.
8. The parties may suggest the mode of partition of the suit property by
submitting their suggestions within four weeks.
9. List on 07.05.2015.
G.P. MITTAL, J
DECEMBER 03, 2014
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